Termination and Dissolution

Tüm Haber Sen and Çinar v Turkey, 21 February 2006 [ECtHR]

Case no 28602/95

1 General principles

28. The Court reiterates that Article 11 § 1 presents trade-union freedom as one form or a special aspect of freedom of association (see National Union of Belgian Police, cited above, § 38, and Swedish Engine Drivers' Union v. Sweden, 6 February 1976, § 39, Series A no. 20). The words “for the protection of his interests” which appear in Article 11 § 1 are not redundant and the Convention safeguards freedom to protect the occupational interests of trade-union members by trade-union action, the conduct and development of which the Contracting States must both permit and make possible. A trade union must thus be free to strive for the protection of its members' interests, and the individual members have a right, in order to protect their interests, that the trade union should be heard (see National Union of Belgian Police, cited above, §§ 39-40, and Swedish Engine Drivers' Union, cited above, §§ 40-41). Article 11 does not, however, secure any particular treatment of trade unions or their members and leaves each State a free choice of the means to be used to secure the right to be heard (see National Union of Belgian Police, cited above, §§ 38-39; Swedish Engine Drivers' Union, cited above, §§ 39-40; and Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96, 30671/96 and 30678/96, § 42, ECHR 2002-V).29. The Convention makes no distinction between the functions of a Contracting State as holder of public power and its responsibilities as employer. Article 11 is not an exception to that rule. On the contrary, paragraph 2 in fine of this provision clearly indicates that the State is bound to respect the freedom of assembly and association of its employees, subject to the possible imposition of “lawful restrictions” in the case of members of its armed forces, police or administration.Article 11 is accordingly binding upon the “State as employer”, whether the latter's relations with its employees are governed by public or private law (see Swedish Engine Drivers' Union, cited above, § 37).

2. Application of these principles to the present case

(a) Whether there has been an interference

30. The applicants considered that the suspension of Tüm Haber Sen's activities and its dissolution constituted a violation of their rights under Article 11 of the Convention. The Government argued that there had been no interference since, in their opinion, the domestic courts had penalised the applicant trade union on the ground that it laid stress on its supposed legal attributes to strike and to conduct collective bargaining, attributes which fall outside the scope of Article 11 of the Convention.31 The Court notes that, at the material time, civil servants were not entitled to set up or join trade unions. The Court of Cassation, sitting as a full court, interpreted the fact that neither the Constitution nor the legislation set out a clear status for trade unions for civil servants as a prohibition of such unions. In the absence of statutory provisions governing the application of International Labour Organisation Conventions nos. 87 and 151, it also held that Turkey's ratification of those texts was insufficient to grant trade-union rights to civil servants.32. The Court also notes that, when the domestic courts examined the case and gave their decision dissolving the applicant trade union, the latter had not engaged in any collective bargaining, entered into any collective agreements or even organised a strike.It follows that Tüm Haber Sen was dissolved solely on the ground that it had been founded by civil servants and its members were civil servants.

(b) Whether the interference was justified

33. Such an interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 and was “necessary in a democratic society” for the achievement of those aims.34. The Court notes that the impugned interference was in accordance with the national law as interpreted by the plenary Court of Cassation. The Court can thus accept that the measure in question, in so far as it sought to prevent a discrepancy between legislation and practice, was intended to prevent disorder.35. As to whether the interference was “necessary in a democratic society”, the Court reiterates that lawful restrictions may be imposed on the exercise of trade-union rights by members of the armed forces, of the police or of the administration of the State. However, it must also be borne in mind that the exceptions set out in Article 11 are to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties' freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the Contracting States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts (see, for example, Sidiropoulos and Others v. Greece, 10 July 1998, § 40, Reports of Judgments and Decisions 1998-IV).36. In the instant case, the Government's arguments provide no explanation as to how the absolute prohibition on forming trade unions, imposed on civil servants and public-sector contract workers in the communications field by Turkish law as applied at the time, met a “pressing social need”. The mere fact that “the legislation did not provide for such a possibility” is not sufficient to warrant a measure as radical as the dissolution of a trade union.37. The Court considers that, at the material time, at least two arguments militated in favour of a strict interpretation of the limitation on civil servants' entitlement to form trade unions.38. In the first place, Turkey had already ratified International Labour Organisation Convention no. 87. Article 2 of that convention secured to all workers, without any distinction between the public and private sectors, the unrestricted right to establish and join trade unions. If the Turkish courts ultimately decided that they could not apply that provision in the instant case, it was on the ground that, at the material time, the Turkish parliament had not yet enacted legislation on the implementation of Convention no. 87.39. Furthermore, although Turkey was one of only two States (the other being Greece) that had not yet accepted Article 5 of the European Social Charter, the Committee of Independent Experts had construed that provision – which afforded all workers the right to form trade unions – as applying to civil servants as well. The Court can only subscribe to this interpretation by a particularly well-qualified committee. It also notes that Article 5 of the European Social Charter sets out conditions for the possibility of forming trade-union organisations for members of the police and the armed forces. By converse implication, this Article must be considered as applying without restriction to other categories of State employees.40. Accordingly, in the absence of any concrete evidence to show that the founding or the activities of Tüm Haber Sen represented a threat to Turkish society or the Turkish State, the Court is unable to accept that an argument based solely on an absolute statutory provision was sufficient to ensure that the trade union's dissolution complied with the conditions in which freedom of association may be restricted. In view of the lack of clear legislative provisions on the subject at the relevant time and the broad manner in which the courts interpreted the restrictions on civil servants' trade-union rights, the respondent State failed, at the material time, to comply with its obligation to secure the enjoyment of the rights enshrined in Article 11 of the Convention. That failing amounted to a violation of the provision in question.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 11

41. Finally, the applicants alleged that, when deciding their case, the national authorities had not taken into consideration the international treaties which granted civil servants the right to form trade unions. They relied on Article 13 of the Convention taken in conjunction with Article 11. Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

42. Having regard to its findings under Article 11 of the Convention, the Court does not consider it necessary to examine this complaint separately.